Read v. Manning

HaNDY, J.,

delivered the opinion of the court.

The question presented in this case, in relation to the effect of the codicil upon the provisions and dispositions of the will, with which it is inconsistent, is substantially the same as that presented in the case of Robert Hairston et al. v. Ruth S. Hairston et al., decided at the present term. The only difference between the two cases is, that the last will in that case, contained an express clause of revocation of former wills, and in the present case, the codicil does not expressly revoke the will. The dispositions in the codicil are, however, entirely inconsistent with those of the will, and must operate in law as a revocation of the will, to the extent of the inconsistency. And there is no difference in this respect, between a will expressly revoking former wills, and one containing no such express revocation, provided they be both duly and legally executed, so as to be admitted to probate.

Another question is presented in this ease, which it is proper to consider, in order to settle the construction to be given to the statute of 1842, in relation to the emancipation of slaves by last will and testament. Hutch. Code, 539, § 11. This question is, whether the provision in the latter clause of the section, that “ the same” (slaves emancipated by will,) “shall descend to and be distributed amongst the heirs at law of the testator, or be otherwise disposed of according to law, in the same manner as if such testator had died intestate,” applies as well to wills made after its passage, as to those made and admitted to probate before its passage.

It would appear, at first view, that this provision had reference to slaves intended to be emancipated by wills made and probated before the passage of the act, as it immediately follows the clause providing for such wills, and the words “the same” slaves, would seem to refer to such as were just spoken of. But when we consider the policy which the legislature intended to establish, it is clear that the provision in question must have been intended to apply to all emancipations of slaves by will, whether made before or after the passage of the act.

It was undoubtedly the object of the legislature to prevent the emancipation of slaves, and to make provision, in all cases of attempted emancipation by will, for the condition of slaves, as to the parties interested in them, after such attempted emancipation. There could be no reason why the legislature, in instituting a policy prohibitory of the emancipation of slaves, should not have made the same provisions with regard to such as should be emancipated by wills made after the passage of the act, as to slaves embraced in wills already made and probated. Indeed, the former would appear to be especially within the policy intended to be established, as the prohibition would operate, for the most part, upon that class; and the only difference between the two classes of emancipations would appear to be that, as to the former, the act took effect immediately, whereas,- as to slaves previously emancipated, provision was made for their removal from the state within a limited time. This appears to be the only difference between the two classes of slaves embraced in tbe policy adopted by tbe legislature, and we are unable to perceive wby tbe rule of property prescribed for tbe latter class, should not be applicable, with at least equal force, to tbe former. Both classes come equally within tbe policy of tbe act, and tbe provision as to tbe condition of tbe property, would appear to be much more justly applicable to cases occurring after tbe passage of tbe act, than to such as already existed.

Looking, therefore, to tbe spirit and policy of tbe act, we are of opinion that tbe provision under consideration has reference to wills made after tbe passage of tbe act, as well as those existing and probated at tbe time of its passage.

Tbe decree is reversed, tbe demurrer overruled, and tbe cause remanded, and tbe defendant required to answer within sixty days.

FisheR, J., dissented.